JEREMY WALDRON on LAW and DISAGREEMENT1 Politics Is About

DAVID ESTLUND JEREMY WALDRON ON LAW AND DISAGREEMENT1 Politics is about disagreement. This is the guiding idea of Jeremy Waldron’s intriguing argument in Law and Disagreement,2 and it guides him to a view that places unusual and inspiring faith in democratic processes of legislation. Waldron’s democratic faith works to the detriment not only of would-be dictators, but also of supreme courts purporting to pass on legislation’s propriety, and even, I believe, against accounts of political authority (or legitimacy; I will interchange these terms) that rely on the possibility of a public conception of justice or legitimacy. These same themes are also present in a companion volume, The Dignity of Legislation,3 though I will consider it only in a supplementary way. The question for Waldron is how law and politics can claim authority over citizens in the light of widespread disagreement about even such basic matters as justice and legitimacy. Waldron assumes that political authority cannot exist unless it can, in principle, be justified to each person it purports to bind, even to many who are mistaken (LD p. 229). I’ll call this general view the liberal conception of political legitimacy. On the other hand, as Waldron recognizes, not just any disagreement could have this kind of weight in justification-an effective veto over claims to authority. Some disagreement is crazy, as when some proposal is rejected by a citizen who thinks it would give too much power to the fairies. Some disagreement is unfair, as when a citizen rejects any proposal that would not make him king. These are only extreme examples, but they show that even if some cases of disagreement defeat claims to political authority, not all do. For ease of reference I will give a name to disagreement that has that moral weight: call it reasonable disagreement. I’ll say very little about what makes some positions reasonable and other ones not. My only point here is this: if we follow Waldron’s liberal approach Philosophical Studies 99: 111–128, 2000. © 2000 Kluwer Academic Publishers. Printed in the Netherlands. 112 DAVID ESTLUND to legitimacy we must make some objections matter and others not. The only alternatives to making this distinction between reasonable and unreasonable objections are a) to make no objections matter in this way, contrary to the liberal approach, or b) to make all objections matter in this way, contrary to the patent weightlessness of many crazy or vicious objections. The question then is not whether to distinguish reasonable from unreasonable views, but where to draw the line. Waldron accepts this. It is only “good faith” or “reasonable” disagreement that legitimate authority must accommodate on his view.4 So when he argues that there is disagreement about everything including justice, rights, and fairness, he is not making the empirically obvious point that everything is controversial to some degree. Brute disagreement, as we might call it, is undoubtedly pervasive. But Waldron has to mean rather that any position about rights, justice, or fairness could be rejected reasonably. This must mean that all positions on these matters are rejectible on grounds that are entitled to a veto, unlike crazy or vicious objections, for example. Waldron’s central thesis is that there is such breadth and depth of reasonable disagreement that there is no morally available basis for constraining majoritarian political procedures by judicial review, or for basing political legitimacy on any tendency of political decisions to be good, or just, or true. Majoritarian processes cannot be subordinated to any particular account of justice, or rights, or even democracy without enshrining some view that is open to reasonable objection. Waldron’s claim is not the empirical proposition that there is pervasive brute disagreement on all matters germane to politics. Waldron’s point about justification is the claim, partly empirical but partly moral, that there is pervasive reasonable disagreement on all these matters. This has consequences in a number of areas, including the legitimacy of judicial review on one hand, and the admissible shape of a theory of political legitimacy on the other. Of these two consequences, the latter is more basic. Waldron’s critique of judicial review rests, in this book, on his more general view that political justification cannot go farther than the justification of fair majoritarian procedures incorporating large diverse and deliberative bodies of citizens or representatives. Anything more substantive JEREMY WALDRON ON LAW AND DISAGREEMENT 113 than this fails to respect the wide and reasonable disagreement that actually exists among citizens. There is a negative claim and a positive claim about legitimacy here. The positive claim, call it Fair Proceduralism,isthat, political decisions can be rendered authoritative on the basis of their having been produced by a deliberative majoritarian process that is fair to all citizens and points of view.5 The negative claim, call it Deep Disagreement,isthat, no position about what is required by fairness or justice or legitimacy is beyond reasonable disagreement. The difficulty I want to explore is that these two claims of Waldron’s seem incapable of jointly coexisting with Waldron’s liberal conception of political legitimacy. As I formulated it above, the liberal conception of legitimacy holds that political legitimacy and authority depend on justifiability to all. The more specific version I want to consider, I’ll call the No Reasonable Objection account of legitimacy: political power is illegitimate unless there is a basis for it that is beyond reasonable objection. When combined with Deep Disagreement, the result is philosophical anarchism, the view that, no claim to political authority is legitimate.6 But philosophical anarchism contradicts Waldron’s acceptance of Fair Proceduralism, which advances a supposed basis for legitimate political authority. Any basis for legitimate political authority such as Fair Proceduralism is ruled out by the combination of No Reason- able Objection and Deep Disagreement. Either I am wrong to think that Waldron holds all three of these views, or he ought to give at least one of them up. Waldron never formulates his standard of political legitimacy explicitly in terms of reasonable objection, but stays with the more general idea of justifiability to each person. One way of avoiding the inconsistency I’ve described would be to divorce the justifiability in his formulation from reasonable acceptance in mine. Then the 114 DAVID ESTLUND pervasiveness of reasonable disagreement would not push his view toward anarchism. In order to avoid the inconsistency in this way Waldron would need to hold that a claim to political authority could in some cases be justifiable to each person even if some citizens might have reasonable objections. In an earlier essay considering the question what is common to and distinctive of liberal political theory, Waldron says that the whole project of liberal justification would fail to get off the ground without employing some conception of reasonableness, and suggests sympathy with a liberalism based on “hypothetical consent,” or acceptance by all those meeting pertinent minimal moral criteria.7 In our terminology, such a view accepts the No Reasonable Objection standard of political legitimacy. And in this new book Waldron several times reasons from a principle of No Reasonable Objection, even without explicitly stating such a principle.8 His emphasis on the breadth and depth of reasonable disagreement is aimed at showing that these many controversial matters cannot be relied upon in political justification and so they cannot form any basis for constraining majoritarian procedures, or for understanding their point. The book is about the pervasiveness of disagreement among reasonable citizens and the illegitimacy of proceeding on grounds that are subject to such disagreement. The association of political legitimacy with acceptability to all reasonable citizens, then, would seem to be indispensable to Waldron’s main line of argument. If, as it appears, Waldron accepts the No Reasonable Objection view of legitimacy, then consistency requires that he reject either Deep Disagreement or any positive account of legitimacy such as Fair Proceduralism. It is clear that Waldron believes there is a basis for political legitimacy, and this too is central to his argument. He tirelessly and eloquently urges the reader to show the respect for majoritarian democratic processes that a liberal respect for indi- viduals requires, and to accept those processes as the final political authority, at least when they are properly constituted and employed in circumstances where there is a need for a common course of action and yet disagreement about which action to take. In these circumstances, Waldron holds, majority decision has “constraining authority” – citizens are obligated to obey.9 Waldron is committed to JEREMY WALDRON ON LAW AND DISAGREEMENT 115 Fair Proceduralism, then, or at least to some account of the authority of majority decision that defies Philosophical Anarchism. Perhaps, then, he does not accept Deep Disagreement which along with No Reasonable Objection entails philosophical anarchism. Waldron never explicitly asserts Deep Disagreement, but he seems committed to it. This is where I think the view ought to budge. Certainly, any account of political legitimacy will be open to disagreement. And we should grant that those who disagree cannot all be dismissed as crazy or vicious. But is this enough to show that the disagreement about an account of legitimacy is morally weighty enough to effectively veto appeals to that account in political justification? Brute disagreement is empirically obvious; reasonable disagreement is not. On the other hand, an important message of Waldron’s book is that it is drastic and often unseemly to characterize positions taken by evidently conscientious citizens as not only mistaken but so defective that they can legitimately be ignored in political justification (e.g., LD p.

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